Commisso Wants New FCC Commissioners to Take the Pledge

Mediacom chairman Rocco Commisso has written to SenateCommerce Committee chairman Jay Rockefeller (D-W. Va.) and ranking member John Thune (R-S.D.) asking them to secure commitments from a newFCC chairman and commissioner that they will "promptly address the brokenvideo programming marketplace."

Theircommittee holds the nomination hearings for new commissioners.

FCCchairman Julius Genachowski is likely presiding over his last meeting onThursday and Republican Robert McDowell has recused himself from decisions asboth prepare to exit in the next few weeks.

Commissoargues that Genachowski and his predecessor, Kevin Martin, both dodged theissue by contending the FCC lacked authority.

"Inour view, the Commission has used its assertion that it lacks the authority totake effective action as an excuse for doing nothing," Commisso wrote.

Commissopointed to commission inaction on a pair of proceedings, calling it anunconscionable disservice to consumers.

"Ithas been over five years since chairman Martin initiated a proceeding regardingthe programming industry's bundling practices," he said. "It has beenthree years since chairman Genachowski first solicited comment on petitionsseeking reform of the retransmission consent rules."

Commissocontends he has hired good lawyers who argue that the FCC does have theauthority, and pointed in the letter to statements from the late SenatorsDaniel Inouye and Ted Stevens, former chairs of Senate Commerce, that the FCChad the power under the 1992 Cable Act to take action to protect consumers inretrans battles.

Commissowas referring to a letter the Senators sent to the FCC in 2007 duringa retrans impasse between Mediacom and Sinclair in which they said that theFCC had the authority to mandate arbitration. They "strongly" urgedthe FCC to step in, at least to mandate carriage during the impasse. Thecommission did not, and under Genachowski has also indicated it lacked theauthority to step in to mandate carriage or arbitration.

TheFCC's attorneys have maintained that their authority is limited to enforcinggood faith negotiations, and under Genachowski proposed to better define whatthose are. But no action was taken on that open item. But the chairman has madeclear that the FCC is reluctant to insert itself in what he sees as free marketnegotiations. Cable operators like Commisso see them as tilted towardbroadcasters given the must-carry/retrans regime and the ability ofbroadcasters to negotiate payments for multiple stations in the market viajoint operating agreements.

Commisso said the FCC has done nothing in theface of "unchecked increases in sports programming fees, extortionatedemands for retransmission consent payments, and coercive wholesale bundlingtactics."